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Recent documents in Colorado Law Scholarly Commonsen-usTue, 18 Dec 2018 02:00:46 PST3600Equity Crowdfunding in New Zealandhttps://scholar.law.colorado.edu/articles/1201
https://scholar.law.colorado.edu/articles/1201Thu, 15 Nov 2018 22:43:34 PSTAndrew A. SchwartzThe Extraordinary Rise and Sudden Decline of Law School Tuition: A Case Study of Veblen Effects in Higher Educationhttps://scholar.law.colorado.edu/articles/1200
https://scholar.law.colorado.edu/articles/1200Mon, 12 Nov 2018 17:48:03 PSTPaul F. CamposThe Modern Class Action Rule: Its Civil Rights Roots and Relevance Todayhttps://scholar.law.colorado.edu/articles/1199
https://scholar.law.colorado.edu/articles/1199Mon, 12 Nov 2018 17:47:55 PST
The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism.

Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers.

Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.

This Article documents a novel legal concept—the growing use of private standards to ensure food safety—reinforced by recent legislation in the United States and elsewhere. While this “New Governance” strategy allows countries to institutionalize the types of steps already taken by private actors, this model is not perfect and additional regulatory oversight and guidance will be necessary to ensure that a reformed New Governance works in this context. This Article confronts the motivations, tensions, and controversies that arise with implementing a New Governance model for food safety and provides a roadmap for achieving higher food safety goals.

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Alexia Brunet MarksExcavating the Forgotten Suspension Clausehttps://scholar.law.colorado.edu/articles/1197
https://scholar.law.colorado.edu/articles/1197Wed, 07 Nov 2018 14:40:19 PSTHelen NortonThe Nonfinancial Returns of Crowdfundinghttps://scholar.law.colorado.edu/articles/1196
https://scholar.law.colorado.edu/articles/1196Wed, 31 Oct 2018 09:07:49 PDT
Securities crowdfunding — the sale of unregistered securities to the public over the Internet — has come under attack before it has even begun. Legal scholars in particular have expressed concern that investors will lose any money they invest in crowdfunding companies. Even assuming that this may be true from a purely financial perspective, these critics are missing an important point: Crowdfund investors with negative returns will not simply have lost their money, but rather they will have spent it (at least in part) on nonpecuniary benefits, including entertainment, political expression and community building. These nonfinancial returns of crowdfunding are readily apparent in the donation and reward context, and this sentiment may well carry over to the emergent context of securities crowdfunding where, on top of nonpecuniary benefits, the investors might even earn a financial return.
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Andrew A. SchwartzIndigenous Law and Its Contribution to Global Pluralismhttps://scholar.law.colorado.edu/articles/1195
https://scholar.law.colorado.edu/articles/1195Mon, 29 Oct 2018 20:05:50 PDTJames AnayaThe Current State of International Lawhttps://scholar.law.colorado.edu/articles/1194
https://scholar.law.colorado.edu/articles/1194Fri, 26 Oct 2018 11:27:42 PDTS. James AnayaCongressional Diversions: Legislative Responses to the Estate Valuation Freezehttps://scholar.law.colorado.edu/articles/1192
https://scholar.law.colorado.edu/articles/1192Mon, 22 Oct 2018 14:26:07 PDTWayne M. GazurLiberty and Property in the Supreme Court: A Defense of Roth and Perryhttps://scholar.law.colorado.edu/articles/1193
https://scholar.law.colorado.edu/articles/1193Mon, 22 Oct 2018 13:57:34 PDTPeter N. SimonBeyond Brooke Group: Bringing Reality to the Law of Predatory Pricinghttps://scholar.law.colorado.edu/articles/1191
https://scholar.law.colorado.edu/articles/1191Mon, 22 Oct 2018 11:50:38 PDT
This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.

We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test, a plaintiff has leeway to select an appropriate measure of cost, including incremental cost. In considering recoupment, Brooke Group’s skeptical dicta should be confined to the particular market structure and theory of recoupment analyzed in that case. The dicta do not apply, for example, to a monopolist who recoups by earning a reputation for predation. A further reason to confine Brooke Group’s dicta is the Court’s highly unusual reweighing of the evidence presented at trial. As we explain using new historical research, this was not the Court’s initial plan after oral argument, but Justice Kennedy switched his vote. We also make the case against extending the price-cost test to more complex pricing strategies, such as loyalty discounts, in which the motivation for a stringent rule—to avoid costly false positives—has little purchase.

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C. Scott Hemphill et al.Excluding Unemployed Workers from Job Opportunities: Why Disparate Impact Protections Still Matterhttps://scholar.law.colorado.edu/articles/1190
https://scholar.law.colorado.edu/articles/1190Mon, 22 Oct 2018 11:50:31 PDTHelen NortonThat Was Close! Reward Reporting of Cybersecurity “Near Misses”https://scholar.law.colorado.edu/articles/1189
https://scholar.law.colorado.edu/articles/1189Wed, 10 Oct 2018 10:37:39 PDT
Building, deploying, and maintaining systems with sufficient cybersecurity is challenging. Faster improvement would be valuable to society as a whole. Are we doing as much as we can to improve? We examine robust and long-standing systems for learning from near misses in aviation, and propose the creation of a Cyber Safety Reporting System (CSRS).

To support this argument, we examine the liability concerns which inhibit learning, including both civil and regulatory liability. We look to the way in which cybersecurity engineering and science is done today, and propose that a small amount of ‘policy entrepreneurship’ could have substantial positive impact. We close by considering how a CSRS should be organized and housed.

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Jonathan Bair et al.Achieving American Retirement Prosperity by Changing Americans' Thinking About Retirementhttps://scholar.law.colorado.edu/articles/1188
https://scholar.law.colorado.edu/articles/1188Wed, 26 Sep 2018 21:01:26 PDT
There are many decisions that Americans have to make about retirement before, at, and after retirement. For example, Americans have to decide when to start saving for retirement, how much to save, how to invest those savings, when to retire, when to claim social security, and how to take required minimum distributions from 401(k) plans or Individual Retirement Accounts. Different things can go wrong at each of these decisions for different reasons. Many Americans, for various reasons, including insufficient energy, money, motivation, time, and understanding, do no retirement planning. Some Americans do some retirement planning, yet worry they are doing insufficient or ineffective retirement planning. A few knowledgeable or wealthy Americans do, or have done for them, sufficient and effective retirement planning. Insufficient or ineffective retirement planning causes Americans to experience decreased financial wealth, health, objective living standards, and subjective well-being in addition to suffer increased anxiety, depression, stress, and worry. Our American economy also has to deal with the resulting negative externalities of many Americans retiring into poverty. This Article analyzes how Americans can achieve retirement prosperity by changing their thinking about retirement. This Article advocates the American federal government educate Americans in thinking about retirement to utilize more thinking tools, think more mindfully, and think more societally. This Article's proposals are based on and introduce to retirement planning the field of cognitive economics.
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Peter H. HuangThe Gatekeepers of Crowdfundinghttps://scholar.law.colorado.edu/articles/1187
https://scholar.law.colorado.edu/articles/1187Wed, 26 Sep 2018 21:01:18 PDT
Securities crowdfunding is premised on two core policy goals: inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the "crowd." Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a reliable market for investors. This gatekeeping function aids efficiency, but is exclusive by its nature. Hence, the tension between inclusive and efficient crowdfunding.

This Article provides a theoretical and an empirical analysis of inclusivity versus efficiency in crowdfunding. It also compares the American crowdfunding system with its counterpart in New Zealand using original research collected by the author during a six-month residency in that country. This research reveals that crowdfunding in New Zealand is much more financially successful than in the United States. This Article explains this outperformance on the basis that New Zealand's system is focused solely on efficiency, even at the expense of inclusivity. In the United States, by contrast, we closed our eyes to the tension between efficiency and inclusivity and tried to achieve both at the same time. In practice, and perhaps as could have been expected, this has led to only minor success on both fronts.

Broadening the analysis out, we see that inclusive crowdfunding is a luxury that only certain countries can manage, depending on their existing systems for entrepreneurial finance. The United States has a huge and sophisticated venture capital industry and thus can afford to sacrifice some efficiency in our crowdfunding system in order to advance inclusivity. But New Zealand has long had very little venture capital investment and hence a real need to develop crowdfunding as an effective new means for efficiently channeling capital to the country's startup companies. The need to consciously trade off inclusivity and efficiency is an important lesson from the present research.

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Andrew A. SchwartzA Diamond in the Rough: Trans-Substantivity of the Federal Rules of Civil Procedure and Its Detrimental Impact on Civil Rightshttps://scholar.law.colorado.edu/articles/1186
https://scholar.law.colorado.edu/articles/1186Wed, 26 Sep 2018 21:01:10 PDTSuzette MalveauxThe GDPR’s Version of Algorithmic Accountabilityhttps://scholar.law.colorado.edu/articles/1185
https://scholar.law.colorado.edu/articles/1185Wed, 26 Sep 2018 21:01:01 PDTMargot KaminskiRobotic Speakers and Human Listenershttps://scholar.law.colorado.edu/articles/1184
https://scholar.law.colorado.edu/articles/1184Wed, 26 Sep 2018 21:00:53 PDT
In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective.
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Helen NortonThe Government's Manufacture of Doubthttps://scholar.law.colorado.edu/articles/1183
https://scholar.law.colorado.edu/articles/1183Wed, 26 Sep 2018 21:00:45 PDT
“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments themselves sometimes seek to manufacture doubt and protect their own interest at the expense of the public’s.

In this symposium essay, I examine how the government sometimes seeks to manufacture doubt about factual assertions it perceives as inconsistent with its policy or partisan preferences. I start with some background on the history of government speech in the United States, a history that reveals the diversity and complexity of the government’s expressive choices. Drawing from historical and contemporary examples, I then identify at least three expressive strategies through which the government can manufacture doubt: through its lies and misrepresentations, through its attacks on individuals and institutions that challenge its preferred narrative, and through its choices to bury or deny access to information that it finds inconvenient or dangerous. I close by briefly considering possible responses to these strategies.

The government’s speech can serve, or instead threaten, deliberative democracy. At its best, the government’s voice speaks truth to power both public and private, and supports or amplifies the voices of the powerless. But government is not always at its best. Our history and continuing experience reveal a variety of ways in which the government's expressive choices can manufacture doubt, distort the truth, and frustrate key constitutional values. In this essay, I seek to identify some of these patterns (both longstanding and new) in hopes that we can better recognize and challenge them when they arise.

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Helen Norton(At Least) Thirteen Ways of Looking at Election Lieshttps://scholar.law.colorado.edu/articles/1182
https://scholar.law.colorado.edu/articles/1182Thu, 23 Aug 2018 15:55:32 PDT
Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery, and more. These different ways of thinking about election lies are by no means mutually exclusive; indeed, they often overlap. Election lies understandably disturb us when they succeed in deceiving their targets, when they influence election outcomes, and when they degrade our public discourse. At the same time, however, we also fear government overreach and the dangers of partisan enforcement, we worry that regulation will inadvertently chill truthful and thus valuable speech, and we sometimes wonder whether the causal link between election lies and significant harm is sufficiently direct to justify the lies’ constraint. By illuminating the diversity and complexity of election-related lies, I emphasize the value in thinking more carefully about what troubles us about them and why. In so doing, I hope to help sharpen our thinking about when and why election lies might be harmful or instead valuable; when and why their regulation might threaten other harms; and when and why they might be amenable to constraint through law, norms, markets, and architecture — or not at all. As just one illustration, why might the identity of the election liar matter? First, the nature of the speaker may shed some light on the First Amendment value, if any, of the lie. The First Amendment sometimes protects lies because of their value in furthering the speaker’s autonomy — as is the case, for example, of lies told to preserve the speaker’s privacy or that enable the speaker to choose how to portray herself to others. But some liars may have less of a claim to constitutionally protected autonomy interests precisely because of their foreign, robotic, corporate, or governmental identity. Second, the speaker’s identity may exacerbate the threats that its election lies pose to key constitutional values: think, for example, of the threats to democratic self-governance posed by foreign or governmental lies. And with respect to possible solutions, the election lies of some speakers (such as robots) may be more amenable than others to regulation by code, some (like corporations) to markets, some (like candidates) to norms, and some (like government) to law. Maybe. In this essay, I offer a long — yet no doubt incomplete — litany of campaign-related falsehoods to show that election lies pose many problems, plural. Some may threaten greater or more direct harm than others, and some may be more responsive to different forms of constraint than others. The variety and complexity of the problem of election lies — their dangers and (perhaps occasionally) their value — require nuanced and diverse responses that recognize the harms of various lies as well as the challenges posed by efforts to constrain them.
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Helen Norton